The state responds that a defendant's
right under Article I, section 11, of the Oregon Constitution to consult with
an attorney before taking a breath test is triggered by a person's invocation
of the right and that, because defendant never invoked that right, the state
could not have violated it.�

In State v. Spencer, 305 Or
59, 74-75, 750 P2d 147 (1988), the court held that, under Article I, section
11, a suspect who has been arrested for DUII has a "right upon request to
a reasonable opportunity to obtain legal advice before deciding whether to
submit to a breath test."� Moreover, a suspect who invokes that right need
not specifically request privacy to consult with an attorney: �"[T]he
request for counsel, by itself, indicates that the arrested driver wants the
essential elements that inhere in that right, including the opportunity for
confidential communication."� State v. Durbin, 335 Or 183, 191, 63
P3d 576 (2003).� That right, however, is triggered by the suspect's request to
speak to an attorney; it is not violated if the suspect never invokes the right
to speak to an attorney.� State v. Schneider, 201 Or App 546, 557, 120
P3d 16 (2005), adh'd to on recons, 204 Or App 710, 131 P3d 842, rev
den, 341 Or 392 (2006) (the right to counsel in this context "is triggered
by a defendant's request").

Defendant argues that Schneider
does not apply because, in that case, the defendant was not specifically
informed of his right to consult an attorney before deciding whether to take a
breath test and did not invoke that right.� Here, defendant argues, he was
informed of his right to call an attorney, and therefore, in his view, the
officer, having told him of that right, was required to further inform him,
either by words or by providing privacy, that should he invoke that right, the
consultation would be private.� Defendant asserts that our decision in State
v. Matviyenko, 212 Or App 125, 157 P3d 268 (2007), supports his argument.�

In Matviyenko, the defendant
expressed a wish to call an attorney at the time he was arrested and given his
rights.� The arresting officer told him that he would have an opportunity to
call an attorney when they reached the patrol office.� Id. at 127.� The
officer took the defendant to the patrol office, placed him in the Intoxilyzer
room with a telephone and phone books, then sat next to the defendant, who
proceeded to call his wife.� Id.� The officer did not tell the defendant
that he would be afforded privacy to talk to an attorney, and the defendant did
not specifically request privacy to talk to an attorney.� We concluded that the
defendant's rights under Article I, section 11, had been violated:

"[W]e acknowledge that an officer may be justified in
remaining in the room until contact with an attorney is made in order to ensure
that the suspect actually calls an attorney rather than using the telephone for
some inappropriate purpose.� However, when a DUII arrestee has asked to call
an attorney, if an officer intends to remain seated in the room until the call
is made, we think that the onus is properly on the officer to inform the
arrestee--before the call is made--that, once he or she contacts an attorney,
privacy will be afforded.� That is because a person in circumstances such
as these could reasonably conclude that, if an officer says that the person may
make his or her phone calls and then sits down at the desk, the officer is
planning to remain for the duration of the calls.� Such a person would rightly
assume that any statements made in the officer's presence would not be
confidential, Durbin, 335 Or at 192, and thus be inclined not to make
the call.� Cf. State v. Goss, 161 Or App 243, 250, 984 P2d 938 (1999)
(it is reasonable to assume that an officer's presence in the room during
telephone consultation with an attorney chills the defendant's ability to
communicate); State v. Riddle, 149 Or App 141, 148, 941 P2d 1079, rev
den, 326 Or 68 (1997) (noting the 'chilling effect' of recording a
telephone conversation even though the defendant was told that no one would
listen to the recording).� Moreover, to conclude otherwise would require the
suspect to reassert the right to private consultation, a result that Durbin
precludes."

Matviyenko, 212 Or App at 130 (emphasis added).

Defendant asserts that the present
case is essentially the same.� In Matviyenkko, the defendant asked to
talk to an attorney and, thus, was aware of his right to do so; here, defendant
was informed of his right to talk to an attorney and, thus, was aware of his
right to do so.� In defendant's view, a DUII suspect who knows of the right to
consult with an attorney before deciding whether to take a breath test must be
offered the privacy to do so.

We disagree that the case law
supports defendant's argument.� Spencer, Durbin, and Matvikyeko
all premised their holdings on the preliminary fact that the defendant in each case
had asked to consult with an attorney before deciding whether to take a
breathalyzer test.� In State v. Burghardt, 234 Or App 61, ___ P3d ___
(2010), we recently emphasized that the constitutional right in question must
actually be invoked before an officer needs to provide the opportunity for a
private consultation with an attorney.� In Burghardt, the defendant and
the arresting officer specifically discussed the defendant's desire to talk to
an attorney.� The defendant told the officer that he wanted to call his father,
who was an attorney but who could not represent defendant.� The defendant
explained that he wanted to get a telephone number from his father.� Id.
at ___ (slip op at 1).� The officer specifically asked if the defendant was
making a call to obtain legal advice, explaining that he would let the
defendant consult privately with his father for that purpose.� The defendant
said that he was not seeking legal advice from his father.� He then made calls
to his father and to a friend in the officer's presence and subsequently
submitted to a breath test.� Id. (slip op at 1-2).� The trial court
suppressed the evidence of the breath test on the ground that the officer had
not afforded the defendant privacy when he had talked to his father.� The state
appealed, and we reversed.� We explained that "an individual's right to
such confidentiality is triggered by a request for legal advice[.]"� Id.
at ___ (slip op at 4).� We noted that nothing that the defendant had told the
arresting officer "triggered the right to a confidential phone call.� He
did not tell [the arresting officer] that he wished to make a call for the
purpose of obtaining legal advice."� Id. (slip op at 5).�

In each of the cases discussed above,
the dispositive issue concerned the defendant's invocation of his or her right
to consult an attorney before taking the breath test, not the defendant's
knowledge of the existence of such a right.� Defendant has cited no authority,
and we are aware of none, to support the proposition that a DUII suspect's limited
right to consult an attorney in the context of deciding whether to take a
breath test is violated in the absence of an invocation of the right.�
Accordingly, we conclude that defendant's proposed extension of the rule of law
set out in Matviyenko is not supported by the rationale of the cases explaining
the Article I, section 11, right.� We decline defendant's invitation to extend
the nature of the right to encompass situations such as this, where the suspect
never indicated any wish to contact an attorney.

Affirmed.

1.Defendant also
suggests, in a supplemental brief, that his calling nonattorneys during the
observation period should be viewed as an equivocal invocation of his right to
counsel that triggered an obligation for Cordes to inquire further about
whether defendant wanted to contact an attorney.� See State v. Ohm, 224
Or App 390, 395, 197 P3d 1136 (2008) (defendant's statement that she
"wanted to ask someone for advice" about whether to take the breath
test was an equivocal invocation of her Article I, section 11, right to consult
an attorney).� Because it is not well developed, we reject defendant's argument
that this case is factually similar to Ohm without further discussion.